Citation Nr: 0624165
Decision Date: 08/10/06 Archive Date: 08/18/06
DOCKET NO. 04-06 850 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an effective date prior to August 29, 2003,
for the award of nonservice-connected disability pension.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Jaeger, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to March
1982; however, the character of his service from May 19,
1978, to March 5, 1982, is considered a bar to all benefits
administered by the Department of Veterans Affairs (VA).
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued in October
2003 by the VA Regional Office (RO) in Waco, Texas.
FINDINGS OF FACT
1. VA notified the veteran of the evidence needed to
substantiate the claim decided herein, explained to him who
was responsible for submitting such evidence, and obtained
and fully developed all evidence necessary for an equitable
disposition of the claim.
2. Neither a formal nor informal claim of entitlement to
nonservice-connected disability pension was received prior to
August 29, 2003.
CONCLUSION OF LAW
The requirements for an effective date prior to August 29,
2003, for the award of nonservice-connected disability
pension have not been met. 38 U.S.C.A. § 5110 (West 2002);
38 C.F.R. § 3.400 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duties to Notify and Assist
VA has certain procedural responsibilities in the claim
development process. The Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000),
enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002 & Supp. 2005)), eliminated the
concept of a well-grounded claim and redefined VA's
obligations with respect to its duties to notify and assist a
claimant. In August 2001, VA issued regulations to implement
the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005)).
The United States Court of Appeals for Veterans Claims
(Court)'s decision in Pelegrini v. Principi, 18 Vet. App. 112
(2004), held, in part, that a VCAA notice, as required by 38
U.S.C.A. § 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on the claim for VA benefits. In this case, the
veteran filed his claim of entitlement to nonservice-
connected disability pension in August 2003 and the initial
decision granting such benefits, effective August 29, 2003,
was issued in October 2003. Thereafter, the veteran appealed
with respect to the propriety of the assigned effective date.
The Board notes that effective date claims are generally
considered to be "downstream" issues from the original
grant of service connection. VA's General Counsel issued an
advisory opinion holding that separate notice of the VA's
duty to assist the veteran and of his concomitant
responsibilities in the development of his claim involving
such downstream issues is not required when the veteran was
provided adequate VCAA notice following receipt of the
original claim. See VAOPGCPREC 8-2003. As such, in
September 2003, prior to the initial decision on the claim,
the veteran was provided with notice of the VCAA and what
evidence was necessary to substantiate his nonservice-
connected disability pension claim. Additionally, a March
2004 letter further advised the veteran of VA's duties to
notify and assist, as well as the evidence necessary to
substantiate his effective date claim.
The Pelegrini Court held, in part, that a VCAA notice
consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) must: (1) Inform a claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence that the claimant
is expected to provide; and (4) request or tell the claimant
to provide any evidence in the claimant's possession that
pertains to the claim. Pelegrini, 18 Vet. App. at 120-121.
The content of the notice as provided to the veteran has
fully complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b). In this regard, the September
2003 and March 2004 letters advised him of the evidence that
VA would attempt to obtain and what evidence he was
responsible for identifying or submitting to VA. Moreover,
while the September 2003 letter informed him of what evidence
was needed to substantiate his nonservice-connected
disability pension claim, the March 2004 letter advised the
veteran of the evidence necessary to grant an earlier
effective date for the award of such benefits. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Pertinent to the fourth element, the March 2004 letter
advised the veteran to provide VA with any additional
evidence or information he may have pertaining to his claim.
For these reasons, to decide the appeal would not be
prejudicial error to the veteran.
All that VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). In this case, since each
of the four content requirements of the VCAA notice have been
fully satisfied, there is no prejudicial error to the veteran
in deciding his claim.
With respect to VA's duty to assist, the Board notes that VA
treatment records were reviewed by both the RO and the Board
in connection with adjudication of the veteran's claim. The
veteran has not identified any additional relevant,
outstanding records that need to be obtained for an equitable
disposition of his claim. Moreover, as the veteran has been
assigned the earliest possible effective date under VA
regulations, namely the date of his claim, and his arguments
on appeal are limited to his interpretation of governing
legal authority, all pertinent information and evidence is
already contained in the claims file. There is no
outstanding information or evidence that would help
substantiate the veteran's claim. VA's General Counsel has
held that in cases where a claim cannot be substantiated
because there is no legal basis for the claim or because
undisputed facts render the claimant ineligible for the
claimed benefit, VA is not required to provide notice of, or
assistance in developing, the information and evidence
necessary to substantiate such a claim under 38 U.S.C.A.
§§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004).
For these reasons, to decide the appeal would not be
prejudicial error to the veteran.
In the circumstances of this case, additional efforts to
assist or notify the veteran in accordance with VCAA would
serve no useful purpose. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements of the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duty to
inform and assist the veteran at every stage in this case.
Therefore, he will not be prejudiced as a result of the Board
proceeding to the merits of his claim.
II. Analysis
In general, except as otherwise provided, the effective date
of an evaluation an award of pension, compensation or
dependency and indemnity compensation based on an original
claim, a claim reopened after final disallowance, or a claim
for increase will be the date of receipt of the claim or the
date entitlement arose, whichever is the later. 38 U.S.C.A.
§ 5110(a); 38 C.F.R. § 3.400.
The effective date of an award of VA nonservice-connected
disability pension shall be fixed in accordance with the
facts found, but shall not be earlier than the date
entitlement arose. 38 C.F.R.§ 3.400(b). For a pension claim
received on or after October 1, 1984, except as provided by
(b)(1)(ii)(B) of this section, the effective date will be the
date of receipt of the claim. 38 C.F.R. § 3.400(b)(1)(ii).
The exception under (b)(1)(ii)(B) of 38 C.F.R. § 3.400
provides that if, within one year from the date on which the
veteran first became permanently and totally disabled, the
veteran files a claim for a retroactive award and establishes
that a physical or mental disability, which was not the
result of the veteran's own willful misconduct, was so
incapacitating that it prevented him or her from filing a
disability pension claim for at least the first 30 days
immediately following the date on which the veteran became
permanently and totally disabled, the disability pension may
be effective from the date of receipt of claim or the date on
which the veteran became permanently and totally disabled,
whichever is to the advantage of the veteran. While rating
board judgment must be applied to the facts and circumstances
of each case, extensive hospitalization will generally
qualify as sufficiently incapacitating to have prevented the
filing of a claim. 38 C.F.R. § 3.400(b)(1)(ii)(B).
A "claim" is defined broadly to include a formal or
informal communication in writing requesting a determination
of entitlement or evidencing a belief in entitlement to a
benefit. 38 C.F.R. 3.1(p); Brannon v. West, 12 Vet. App.
32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196,
199(1992). Any communication indicating an intent to apply
for a benefit under the laws administered by the VA may be
considered an informal claim provided it identifies, but not
necessarily with specificity, the benefit sought. See 38
C.F.R. § 3.155(a); Servello at 199 (holding that 38 C.F.R. §
3.155(a) does not contain the word "specifically," and
that making such precision a prerequisite to acceptance of a
communication as an informal claim would contravene judicial
precedents and public policies underlying the statutory
scheme). To determine when a claim was received, the Board
must review all communications in the claims file that may be
construed as an application or claim. See Quarles v.
Derwinski, 3 Vet. App. 129, 134 (1992).
Upon receipt of an informal claim, if a formal claim has not
been filed, the RO will forward an application form to the
claimant for execution. If the RO receives a complete
application from the claimant within one year from the date
it was sent, the RO will consider it filed as of the date of
receipt of the informal claim. 38 C.F.R. § 3.155.
In this case, the RO received the veteran's claim for
nonservice-connected pension on August 29, 2003. The RO
granted such benefits in a rating decision dated in October
2003, effective August 29, 2003, the date of receipt of the
claim. The veteran contends that he is entitled to an
effective date of July 24, 1997, as such was the date that he
became permanently and totally disabled as a result of a
stroke.
The Board initially notes that the exception under
(b)(1)(ii)(B) of 38 C.F.R. § 3.400 is inapplicable in the
instant case as there is no evidence that, within one year
from the date on which the veteran first became permanently
and totally disabled, he filed a claim for a retroactive
award. Specifically, the evidence of record, to include VA
medical records and the veteran's own statements, reflects
that he suffered a cerebrovascular accident in 1997.
However, he did not file a claim seeking either service
connection or pension benefits based on such disability until
March 1999. Therefore, the veteran is not entitled to the
exception under 38 C.F.R. § 3.400(b)(1)(ii)(B).
The Board notes that VA received the veteran's claim for
service connection for brain damage on March 10, 1999. Under
38 C.F.R. § 3.151(a), a claim for compensation may be
considered to be a claim for pension, and a claim for pension
may be considered to be a claim for compensation. The
greater benefit will be awarded unless the claimant
specifically elects the lesser benefit. The Secretary of VA
is not, however, automatically required to treat every
compensation claim as also being a pension claim or vice
versa. Rather, the Secretary must exercise his discretion in
determining the nature of a claim by reviewing the contents
of the application and the evidence in support thereof.
Stewart v. Brown, 10 Vet. App. 15, 18 (1997).
However, upon review of the veteran's March 1999 claim,
submitted on VA Form 21-526 (Veteran's Application for
Compensation or Pension), the Board finds nothing evidencing
a belief in entitlement to pension benefits. Specifically,
the veteran drew an "X" through the sections regarding his
employment and net worth. Moreover, in the "Remarks"
section, he indicated that he was filing for service
connection disability benefits. The Board further notes that
the veteran did not mention pension benefits, discuss his
financial status, submit any financial information in support
of a pension claim, or specifically indicate that he was
electing the lesser benefit (pension) over the greater
benefit (disability compensation). Moreover, after the RO
denied the veteran's claim for service connection for brain
damage in a rating decision dated in October 2000, the
veteran did not respond by clarifying that he was also
seeking pension benefits. Given these facts, the Board
construes the March 10, 1999, application as a claim for
service-connected benefits only.
As the veteran did not file any document that can be
construed as a claim for nonservice-connected disability
pension prior to August 29, 2003, the Board concludes that
the criteria for entitlement to an effective date prior to
August 29, 2003, for the award of nonservice-connected
disability pension have not been met. The evidence is not in
relative equipoise; therefore, the veteran may not be
afforded the benefit of the doubt in the resolution of this
claim. Rather, the preponderance of the evidence is against
the claim; it must therefore be denied.
ORDER
An effective date prior to August 29, 2003, for the award of
nonservice-connected disability pension is denied.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs